Protecting the Public?

Executive Discretion and the Release of Mentally Disordered Offenders

Tessa Boyd-Caine

• Publisher: Willan
• Year: 2012
• Print ISBN: 9780415627962
• eBook ISBN: 9781136842382
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

The separation of powers and independent, judicial decision-making are generally accepted as hallmarks of the rule of law in democratic societies. Yet the exercise of executive discretion remains an important aspect of criminal justice in many areas. Protecting the Public? explores the tension between the rights of individuals detained under criminal and mental health law and the responsibility for public protection in the little-known world of executive discretion over mentally disordered offenders. It is based on extensive and unique empirical research conducted at the UK Home Office, with legal and clinical practitioners, with civil society organisations and by reference to comparative jurisdictions. Central questions considered include: executive, judicial and tribunal decision-making; mental health and criminal law reform regarding serious or high-risk offenders; the influence of human rights law on policy and practice; and the role of civil society, particularly victim interest groups, in public policy. Through its analysis of decisions to release 'high-risk' offenders, this book goes to the heart of the public protection agenda – examining how 'the public' is constructed and what protection is provided by the exercise of executive discretion. This book will be of interest to academic and other researchers, students, policy-makers, law reformers, commentators and anyone interested in the field of criminal justice, mental health law and public policy.

Chapter 1

Executive discretion and the rule of law

Introduction

Independent decision-making is widely accepted as the backbone of criminal justice in democratic societies. That independence is based upon two fundamental elements: the rule of law, and the separation of powers between executive and judicial functions. These principles ‘aim to prevent, through law, the arbitrary or tyrannical exercise of state power and to enhance thereby society's faith in government’ (Manderson 2008: 222). Conversely, the appropriate and lawful exercise of the law can be assessed by reference to the independence of the decisions made. For example, one of the key distinctions between lawful and arbitrary (unlawful) detention is the independence of the authority ordering it. As the International Convention on Civil and Political Rights states:

anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. (article 9:4)

The European Convention on Human Rights provides similarly for the lawfulness of detention to be reviewed by a court (article 5:4), and further that a fair hearing is dependent upon an ‘independent and impartial tribunal established by law’ (article 6:1). Even historical alliances such as the Commonwealth of Nations have committed their members to ‘fundamental political values’ which include ‘democracy, democratic processes and institutions which reflect national circumstances, the rule of law and the independence of the judiciary, just and honest government’ (Harare Commonwealth Declaration 1991, para 9:2). Thus, the importance of judicial authority acting independently from the state is well established in international law.

Many of the roles, responsibilities and relationships between those engaged in the state and those working in the criminal justice system flow from these principles. For instance, when elected representatives of parliament form a cabinet of ministers, their role is to set broad governmental policy on issues like criminal law and justice. Ministers do not ordinarily undertake the day-to-day administrative processes or minutiae associated with these policies. That is the role of the bureaucratic departments and officials who work to support the government. Similarly, cabinet ministers with responsibility for criminal justice policy are not expected to make decisions about individual cases or offenders. That role is more commonly given to professionals and experts in the institutions of the criminal justice system such as courts, tribunals and parole boards.

Criminal justice decision-making has not always operated in this separate and independent manner. Historically in the English and common law jurisdictions, offenders were detained under the authority of the British monarch. This was originally known as ‘detention at his or her majesty's pleasure’ or ‘at the governor's pleasure’ in British colonies. Today, the monarch's power has been almost entirely subsumed within the functions of the executive branch of government, which has the responsibility for executing plans, actions and laws. Moreover, the legal authority that was once vested in the monarch or the executive branch has been further divested to independent institutions. In the criminal justice system these include the police, courts and prisons. In so far as it continues to exist, executive authority is often perceived as a formality or symbolic function, such as in cabinet ratifications of policies or programmes that have been developed by government departments.

Executive discretion and public policy

The emphasis placed upon the separation of powers has led to a common perception that executive discretion no longer has any relevance in contemporary liberal democracies. However, that perception ignores the ongoing role of executive discretion in a number of important areas of public policy, where the executive exercises direct control over processes and decisions at an individual level. For example, Australian law governing people who enter the country as refugees or seeking asylum requires an executive decision to grant an individual humanitarian or bridging visa (Australian Migration Act 1958: section 417). The problems that arise when political and legal roles are blurred in this way have been highlighted in criticisms that the system produces ‘a fundamental conflict of interest between the Minister as guardian of unaccompanied children in detention centres and the Minister as the person who makes decisions about visas’ (HREOC 2004: 193). The increased use of detention of refugees and asylum seekers has also been linked to inadequate protection of their human rights. Thus in the UK it has been argued that, prior to the introduction of the Human Rights Act 1998:

officials faced few limits on their legal ability to detain asylum seekers … there was no real judicial oversight of decisions to detain asylum applicants on the basis of administrative convenience in jail or in immigration centres. Arguably more alarmingly, there was no statutory limit on how long such individuals could be held in custody. (Gibney 2004: 125)

Policies to counter terrorism have also utilized executive authority to facilitate greater control over suspects. For example, European anti-terrorism policy has ‘given much greater powers to states to ensure that terrorists do not penetrate asylum systems’ (Schoenholtz and Hojaiban 2008: 11). In the UK, the Anti-Terrorism, Crime and Security Act 2001 (ACSA 2001) gave authority to the Secretary of State (Home Department) to certify a non-citizen as a suspected ‘international terrorist’, if he or she suspected the person of being a terrorist or posing a risk to national security (ACSA 2001: part 4: 21). Subsequently, the Immigration, Asylum and Nationality Act 2006 (IANA 2006) allowed the Secretary of State to issue a certificate that an appellant was not entitled to the protection of the Refugee Convention, on national security grounds (IANA 2006: section 55).

In Australia, a key case in this respect concerned Dr Mohammed Haneef, an Indian national employed as a doctor in the state of Queensland. Dr Haneef was arrested and detained without charge (subsequently released), on suspicion that he had been involved in attempted terrorist attacks on airports in London and Glasgow in 2007. Following his release from police custody, the then Minister for Immigration exercised his executive discretion to cancel Dr Haneef's working visa, which made him vulnerable to being removed from Australia. The minister defended his decision to cancel the visa on the basis of ‘reasonable suspicion’, namely that ‘Dr Haneef had an association with people involved in terrorism and for that reason failed to satisfy the character test in section 501 of the Migration Act 1958 (Cwth)’ (Law Council of Australia 2008: 10).

The Australian government faced condemnation of these actions on two grounds. Firstly, their legality was questioned, particularly when Dr Haneef successfully challenged the visa revocation in court. Secondly, the minister's actions were strongly criticized for undermining the legitimate exercise of executive discretion. This point was emphasized in evidence to the independent inquiry that was commissioned into the matter when the government changed a short time later (Clarke 2008).

The public's faith in the integrity of our judicial system is undermined when a Minister appears to interfere in, or arbitrarily override, the outcome of judicial proceedings in a manner inconsistent with the separation of powers. (Law Council of Australia 2008: 11)

The Haneef case was indicative of the growing tensions around the world between public safety and civil liberties. Such tensions have been heightened by the contemporary priority placed upon countering terrorism. While the government's actions in that case were flawed, they also reflected the increasing pressure upon states to act – and be seen to act – in the interests of national security. The origins of that shift are another research project entirely (see, for example, Daruwala and Boyd-Caine 2007). Moreover, some have argued that politicians have brought these pressures upon themselves in their rush to be seen as ‘tough’ in the face of crime and other threats to safety or public order (Sparks 2000). Be that as it may, these developments provide a starting point for this book in demonstrating the strong and growing pressure upon the executive in relation to the public protection agenda.

Operational differences

One of the interesting aspects of executive discretion is how differently it operates from traditional legal institutions. The executive is not bound by legal principles such as the rule of law or procedural fairness. Nor is it defined by the protocols of a courtroom. It may recognize these principles and processes, but the exercise of executive discretion is not constrained in these respects. Of course, the exercise of discretion itself is not unusual. On the contrary, discretion is an integral element of decision-making in many legal settings, particularly in the criminal justice system. For example, discretion is as important for the formal deliberations of a judge in a courtroom as it is for the daily tasks of court staff selecting and disseminating papers in a case (Hawkins 2003). What is exceptional is the operation of executive discretion; the extent that ministers have direct responsibility for individual decisions.

Examining the links between different forms of executive and discretionary authority was an underlying interest in this research. Yet from the outset of the project these parallels did not resonate with colleagues, nor were they recognized by other scholars in the field. There was little acknowledgment of the tendency towards executive authority in a number of ostensibly disparate policy arenas. Nor was there any recognition that the public protection agenda was a common element in an increasing array of detention regimes designed to control and contain particular populations.

Importantly, recognition of these links changed in the course of my research for this book. In the UK, the government began to emulate Australia's policies of detaining refugees and asylum seekers while their applications were investigated and processed. This was an issue that attracted increasing public and political attention, particularly in the campaign for the 2005 UK parliamentary election. Similarly, new measures for dealing with terrorism suspects were proposed following bomb attacks in London in July 2005. In the ensuing years there were various attempts to introduce laws enabling longer periods of detention alongside other measures such as control orders. These constrained the liberty of people who were believed to be engaged in terrorist activity but had not been convicted of any such offence. Here again, executive discretion was often key to the structures of authority that underpinned these measures; and its function was commonly to license the use of indefinite detention.

These examples illustrate recent trends towards governments giving themselves more and more powers in the interests of protecting the public from apparent threats to their safety. Most of the examples I have discussed so far have been sensitive and highly visible matters whose significant profiles derive in part from their implications for foreign policy and international relations. But they are also important indications of attempts by states to identify and control people that are deemed to be dangerous.

Within the domestic sphere, another site for the revision of mechanisms to control dangerous behaviour has been the criminal justice system. This has been particularly so in the incessant review and reform of sentencing laws (O'Malley 1999). Discussion of sentencing has long been concerned with how best to combine the objectives of punishment for a crime, prevention of future crimes and protection of the public. As early as 1948 the English Criminal Justice Act sparked debate about how best to balance the preventive and rehabilitative elements of penal policy (Advisory Council on the Treatment of Offenders 1963). So concerns about risk and dangerousness are not a new phenomenon. What has changed in recent times has been the tenor of those concerns and the extent to which they have supplanted long-standing principles of the criminal law. Prison sentences traditionally entailed detention as a means of punishment, following a conviction for an offence. The finding of guilt for an act already committed was central to determining how long a prisoner should be detained in prison. However, in recent years the punitive purpose of sentencing has been supplemented by preventive elements that are designed to prolong an individual's detention and thus forestall them committing any future harm.

In England and Wales, a raft of sentencing options have come to entail both a tariff, the period a prisoner should serve for punishment and deterrence, and a discretionary period that can be applied or avoided depending on an assessment of risk posed by the offender. One example is the option of discretionary life sentences. These may be imposed in certain cases of violent or serious offences where the offender is deemed to be mentally unstable, likely to reoffend, and to present a grave danger to the public for a long or uncertain time (Padfield, Liebling et al. 2003).

Such sentencing options have created a process whereby offenders can be formally classified as ‘dangerous’. This is most commonly applied to people who have been convicted of sexual or violent offences and who, in the court's view, are likely to reoffend in the same way. A classification of ‘dangerous’ gives the court the option to apply indeterminate sentences in the interests of public protection, as Her Majesty's Prison Service explains:

The indeterminate sentence will be given to dangerous offenders convicted of sexual or violent offences carrying a maximum penalty of 10 years’ imprisonment or more. The court will set a tariff for punishment and retribution, after which release is at the Parole Board's discretion. As with a life sentence, prisoners will stay in custody until the parole board is satisfied that it is safe to release them. After release the offender may remain on licence indefinitely but, unlike life licensees, they can apply to have their licence reviewed 10 years after release … The extended sentence for public protection will be given to dangerous offenders convicted of sexual or violent offences that carry a maximum penalty of at least two but less than 10 years’ imprisonment. The sentence will consist of two parts: a custodial period of at least 12 months and an extended licence period of up to eight years. Release is at the discretion of the Parole Board any time between the halfway point of the custodial period and the custodial end date. (Sanderson 2009)

The policy objective behind these developments has been to ‘bring sentencing practices and sentencing law into line with community expectations that longer, tougher custodial sentences should be introduced for particular types of offenders, namely serious sexual and serious violent offenders’ (Richardson and Freiberg 2004: 82). Their protective element is clearly geared around containment, through the prolonged incarceration of an offender. In some cases, ‘the focus of dangerousness assessment and its classification became a measure of the extent to which the public needed to be protected from such offenders’ (Henham 2003: 59). The added protection provided by extending someone's detention is prioritized over any harmful effect on the offender, such as a disproportionately punitive loss of liberty. But for many, the result has been a concerted shift away from traditional notions of criminal justice that once included objectives of reintegration alongside punishment.

The idea that there is a zero-sum contest between victims and offenders, causal explanation and moral responsibility, understanding and condemnation, is a key feature of the currently dominant politics of law and order … Punitive obsessions are the undeclared projection, not the obverse, of the evils they condemn. (Reiner 2007: 19)

Yet protective sentencing policies have been widely criticized as incompatible with the central principle of proportionality, whereby gradations in punishment according to the nature of an offence underscore the preventive or deterrent objectives of detention (Ashworth 1983). Indeed some researchers have suggested that judicial discretion has been tending to ‘avoid, mitigate or ameliorate’ the punitive objectives of protective sentencing in the interests of preserving proportionality (ibid; see also Henham 2003). The capacity of protective sentencing to prevent or deter future offending has also been questioned. One study on discretionary life sentences found that they may have little effect ‘on those who commit the most serious crimes for which a life sentence is likely to be imposed’ (Padfield 2002). Nevertheless, they remain popular sentencing policies in light of the ‘increasingly extravagant’ claims by politicians to be able to protect the public through the imprisonment of risky individuals (Hope and Sparks 2000: 7). Consequently:

a whole variety of paralegal forms of confinement are being devised … not so much in the name of law and order, but in the name of the community that they threaten, the name of the actual or potential victims they violate. It appears that the convention of ‘rule of law’ must be waived for the protection of the community against a growing number of ‘predators’, who do not conform to either legalistic or psychiatric models of subjectivity. (Rose 2000: 334)

The purpose of this discussion has not been to analyse the changing nature of penal policy. Rather, I am interested in how those policy shifts relate to, and can help us understand, developments in other areas of the law. Nowhere are the tensions between correction and control more evident than in the management of mentally disordered offenders. Restricted patients in England and Wales are one such group. They have been convicted of a criminal offence but, instead of sentencing them to prison for punishment, the court orders their detention in hospital for compulsory treatment of their mental disorder. While the purpose of their detention is for therapeutic intervention, the decisions about their progress through the system towards release are ‘restricted’ to an executive order under the powers of the Secretary of State. The executive's role is expressly that of providing a measure of protection to the public. Even where an independent mental health tribunal has the power to determine the release of a restricted patient, that authority is shared with the Secretary of State.

Separation of powers

As the discussion in this chapter has illustrated, the separation of powers between judicial and political functions is not absolute. Indeed, the executive exercises its discretion in a number of important areas of law. Yet very little is known about the operation of that discretion. What is the relationship between the executive and other actors such as civil servants, practitioners or professionals? How does executive discretion interact with domestic laws and policies such as those of the criminal justice system or with international frameworks such as hu...

Table of contents

• Front Cover
• Half Title
• Title Page
• Copyright
• Contents
• Acknowledgements
• Preface
• 1 Executive discretion and the rule of law
• 2 Care and control
• 3 The operation of executive discretion
• 4 Relationships in the system of executive discretion
• 5 Constructing ‘the public’
• 6 Human rights and the restricted patient system
• 7 Patient rights and public protection
• References
• Index